OPERATION OF THE COURTS AMID PUBLIC HEALTH THREATS

6.1 Summary

In the event of a public health emergency, such as the widespread outbreak of an infectious disease within a community, the standard procedures of the court may need to be altered in order to assure the safety of persons participating in judicial proceedings. The court might have to determine whether an individual suspected of being infected with a contagious disease should be permitted to physically appear in the courtroom and, if not, how the proceedings will be conducted to adequately ensure the individual's participation. Other issues might arise, such as the sufficiency of the individual’s access to and consultation with counsel, the availability of court judicial and non-judicial personnel not affected by the contagious disease, and the need to relocate to safer and more sanitary premises. A public health emergency could strain the resources of the courts and require innovative solutions that ensure the continued operation of the judicial system while respecting constitutional due process guarantees.

6.2 Appearance of Individuals Posing a Potential Threat to Public Health

6.2.1 Appearance by Means Other Than in Person

Although isolation and quarantine orders may, under certain circumstances, be issued following ex parte hearings, an individual affected by such an order is subsequently entitled to a hearing on the subject within 10 days after the District of Columbia Superior Court (Superior Court) receives the individual’s petition. D.C. Official Code § 7-134(b); see also U.S. Const. amend. V. However, an individual who is the subject of an isolation or quarantine order may be physically unable to appear in court due to illness, isolation, or quarantine. Alternatively, the court may be unwilling to permit an infected or potentially infected individual to appear in person because of the health threat such an individual poses to court personnel, counsel, and the attending public (if the hearing is not closed).

An ex parte hearing is one that has only one party present, which is an exception to the general rule of court procedure that both parties must be present at any argument before a judge.

In the event an individual should not be permitted to attend proceedings in person, the court may wish to consider an alternative procedure. Super. Ct. Civ. R. 43(a) provides that “[t]he Court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.” Superior Court Administrative Order 12-16 provides that “court video and web conferencing technology ... will be made available ... where witnesses and other parties are physically unavailable to appear in court.”

For misdemeanor prosecutions for criminal violations under D.C. Official Code § 7-140, Super. Ct. Crim. R. 43 requires the defendant to be present in the court unless he or she consents in writing to the arraignment, plea, trial, and sentencing occurring in his or her absence.

6.3 Closure of Hearings or Sealing of Records

In addition to the question of whether a person who is infected or potentially infected will be physically present in the courtroom, the court may need to decide whether a hearing should be closed to the public. Furthermore, the court may need to decide whether to order that certain records be sealed.

The likely basis for closing a hearing would be to protect the individual’s privacy interest in information regarding his or her health condition. The court must weigh the following criteria:

The party seeking to close the courtroom must advance an overriding interest that is likely to be prejudiced;

The closure must be no broader than necessary to protect that interest;

The trial court must consider reasonable alternatives to closing the proceeding; and

The court is required to evaluate this interest in each case. The individual may waive his or her privacy interest.

The Superior Court has the authority to seal cases and documents by court order pursuant to Sup. Ct. Civ. R. Rule 5-III. However, the public has a presumptive right of access to a broad range of court records in civil cases. See Mokhiber v. Davis, 537 A.2d 1100, 1106, 1111 (D.C. 1988) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)) for the proposition that courts of this country recognize the public’s general right to access, inspect, and copy public records and documents, including judicial records). The common law presumptive right of access to judicial records is “bolstered when the materials sought will shed light on events of historical or contemporary interest to a wider audience; an issue of greater and wider public importance may create a stronger claim of access than a less important issue.” Id. at 1115-16.

A party seeking to seal a judicial record must show specific harms that are substantial enough to outweigh the presumption of openness. Mokhiber, 537 A.2d at 1115-16. The Superior Court has discretion to weigh a moving party’s need for secrecy against the public’s right of access. In re Application of National Broadcasting Co., 653 F.2d 609, 613 (D.C. Cir. 1981) (noting “[b]ecause of the difficulties inherent in formulating a broad yet clear rule to govern the variety of situations in which the right of access must be reconciled with legitimate countervailing public or private interests, the decision as to access is one which rests in the sound discretion of the trial court.”).

Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a covered health care provider may disclose a person’s PHI in connection with a judicial proceeding in response to a court order, or in response to a subpoena or other lawful process if the provider receives satisfactory assurances that the party seeking the information has made a reasonable effort to provide notice to the person or seek a protective order from the court. 45 C.F.R. § 164.512(e)(1). See section 10.4.4 D.

6.4 Protection of Court Personnel

In the event of an outbreak of infectious disease in a community, the court may find it necessary to adopt the procedures discussed in section 6.2.1 to ensure that an individual subject to an isolation or quarantine order does not expose court personnel to the disease. In certain circumstances, such as when the outbreak has affected large numbers of persons in the community or the infectious disease is easily transmitted through airborne droplets, the court may need to limit public access to the courtroom. In extreme circumstances, the court itself may need to relocate to a non-affected area to ensure its continued operation.

6.4.1 Relocation of the Court

Relocation of Hearings at Judicial Discretion – Trials upon the merits must be conducted in open court and so far as convenient in a regular courtroom. Super. Ct. Civ. R. 77(b). However, all other acts or proceedings may be conducted without the attendance of the clerk or other court officials and at any place either within or without the District of Columbia (the District). Id. A hearing may be conducted outside the District with the consent of all affected parties. Id.

Emergency Authority to Conduct Proceedings Outside District of Columbia – The Superior Court may hold special sessions outside the District when the chief judge finds that because of emergency conditions, no location within the District is reasonably available where such special sessions could be held. D.C. Official Code § 11-911(a). The Superior Court may transact any business at the special session outside the District which it has the authority to transact at a regular session, except that a criminal trial may not be conducted without the consent of the defendant. D.C. Official Code § 11-911(b).

6.5 Tolling or Delaying of Proceedings

If a natural disaster or other emergency situation requires the closure of the Superior Court or renders it impracticable for the United States or District government or a class of litigants to comply with deadlines imposed by any Federal or District law or rule that applies in the Superior Court, the chief judge may enter such orders as may be appropriate to delay, toll, or otherwise grant relief from the time deadlines imposed by otherwise applicable laws or rules for such period as may be appropriate for any class of cases pending or thereafter filed in the Superior Court, except that the writ of habeas corpus may not be suspended. D.C. Official Code § 11-947(a)(2)(A), (a)(4). This authority extends to all laws and rules affecting criminal and juvenile proceedings (including, pre-arrest, post-arrest, pretrial, trial, and post-trial procedures) and civil, family, domestic violence, probate, and tax proceedings. D.C. Official Code § 11-947(a)(2)(B).

An order may not toll or extend time deadlines for a period of more than 14 days, except that if the chief judge determines that an emergency situation requires additional extensions, the chief judge may, with the consent of the Joint Committee on Judicial Administration, enter additional orders to further toll or extend such time deadlines. D.C. Official Code § 11-947(d).

6.6 Proceedings Involving Numerous Persons

In the event of an infectious disease outbreak, the Superior Court may be called upon to issue numerous isolation and quarantine orders. Judicial surge capacity may be obtained through several logistical and procedural measures.

6.6.1 Additional Juridical Personnel

Additional Judges – Upon presentation of a certificate of necessity by the chief judge of the Superior Court, the chief judge of the District of Columbia Court of Appeals (Court of Appeals) may designate and assign temporarily one or more judges of the Court of Appeals to serve as a judge of the Superior Court. D.C. Official Code § 11-707(b).

Magistrate judges may be appointed as masters and may hold trial proceedings and make or recommend findings of fact on issues to be decided by the Superior Court without a jury if appointment is warranted by some exceptional condition. Super. Ct. Civ. R. 53.